Here’s a legal puzzler for you: Should the government be able to retry a woman who has already served the entirety of her sentence for a conviction that has now been tossed out but who may still be guilty?

A federal prosecutor and a defense attorney debated that question Thursday in Denver federal court in the case of Gwen Bergman. Bergman, a former Aspen resident, was convicted in 2008 in a trial to a judge of trying to hire a guy to kill her son’s father. She went to prison. The problem? Her attorney in that trial — Howard Kieffer — wasn’t an attorney at all, unbeknownst to Bergman. In 2010, he was convicted of fraud and contempt of court.

Timothy Vanderwerff — a child porn suspect who had his plea deal with prosecutors rejected by a federal judge because Vanderwerff agreed in the deal to waive his right to an appeal — will in fact have his day before an appellate court.

Vanderwerff has lodged an appeal of the deal’s rejection with the 10th Circuit Court of Appeals in Denver, according to a court filing in his criminal case. The filing does not spell out Vanderwerff’s argument against the rejection — that will come a little later when full briefs are due — but instead merely notes, “The sole basis for the order rejecting the plea agreement was the agreement’s inclusion of an appeal waiver.”

The rejection of Vanderwerff’s plea deal was an extraordinary line in the sand by Senior U.S. District Judge John Kane against the waivers, which are common across the country. Kane said appellate waivers undermine the criminal justice system’s ability to review its work, “sacrificing constitutional rights at the altar of efficiency.” Both prosecutors and Vanderwerff urged Kane to accept the deal prior to his order, saying that the appellate waiver is an important negotiating chip for both sides.

A separate, new filing in Vanderwerff’s criminal case makes clear why Vanderwerff was so wedded to the waiver. In a status report filed on July 11, Vanderwerff’s attorney reports that prosecutors are refusing to re-offer the same deal to Vanderwerff absent an appellate waiver. Instead, Vanderwerff’s attorney writes, the government will only consider a plea to a more serious charge.

“The new offer subjects Defendant to a five-year mandatory minimum, a significantly higher statutory maximum, and a higher advisory guideline range which exceeds the original offer’s ten-year cap,” attorney Edward Harris writes in the filing.

Under the original plea deal — the one with the waiver — Vanderwerff would have faced no more than 10 years and as little as probation, though he agreed not to ask for a sentence of less than five years. Absent any plea deal, Vanderwerff will go to trial, where he could face up to 20 years in prison.

Vanderwerff is charged with one count of receipt and two counts of possession of child pornography. His trial had been scheduled for August, though that is now almost certain to change.

Fellow lawyers and colleagues are mourning the loss of Robert “Bob” Mydans who died Saturday while snowshoeing in Rocky Mountain National Park. He was 64.

Mydans was a career prosecutor and spent the last 20 years in the Colorado U.S. Attorney’s Office working on drug cases and complex economic crime cases. He also was acting chief in the Durango branch office.

Services are at 1 p.m. Saturday at Horan & McConaty, 5303 East County Line Road in Centennial.
In addition to flowers, donations may be made to the Mydans Memorial Fund through the Rocky Mountain Nature Association, www.rmna.org or P.O. Box 3100, Estes Park 80517.

All contributions are expected to go to backcountry search and rescue and trail maintenance.

Aaron Castro, of Commerce City, is accused to running a multi-million-dollar methamphetamine ring.

Earlier this year, we told you about the nerdiest accused meth kingpin ever, a man who allegedly used proceeds from drug sales to buy 18,753 comic books. So strong was his comic compulsion that one accomplice told police the dealer was having cash-flow problems.

At the time, federal prosecutors were seeking to take control permanently of Aaron Castro’s prized collection. That transfer has now taken place, after a federal judge last month signed an order (PDF) turning over each and every Batman and Superman to the federal government.

The order also gives the government possession of Castro’s Audi A8, Mercedes S500 and Lexus GS300, as well as a little more than $3,000 in cash.

Asked what the government would do with all this new loot, a U.S. attorney’s spokesman said earlier this month that the cars and comic books would likely be put up for auction. No word on the date for such a sale. But it’s never too early to start stocking up on Christmas gifts for the Comic-Con enthusiast in your life.

When it came time yesterday for the statement-makers to make their statements about the acquittal of Xcel Energy on charges of workplace safety violations causing five deaths, governmental officials chose the traditional route and e-mailed out prepared comments.

Xcel, by contrast, posted a note on its Twitter feed, then later provided a link to a statement posted to Facebook. Minutes after the jury verdict was read, Xcel wrote on Twitter:

Not guilty on all counts Cabin Creek trial;incident was tragic accident.We complied with OSHA safety regs, are committed to safety

Xcel’s trial came nearly four years after five men died at the Cabin Creek hydroelectric power plant near Georgetown. The men were re-sealing the inside of a large water pipe when a fire broke out, trapping them inside. It took hours for Xcel and the mens’ direct employer, RPI Coating Inc., to get a rescue plan in place, during which time the men died of smoke-inhalation.

UPDATE:The jury has now gone home for the weekend, without reaching a verdict. Deliberations will start up again Tuesday at noon. The jury decided to take a long weekend to accommodate one juror who had a previously scheduled long-weekend trip (to Las Vegas!). If that juror had to be excused because of the trip, then an alternate would have been brought in and deliberations would have had to start from the beginning.

The jurors in the criminal trial of Xcel Energy on charges of violating workplace safety regulations resulting in the deaths of five men asked two questions today that might be good news for Xcel’s attorneys.

Xcel is charged over the 2007 deaths of five subcontractors working inside a large, underground pipe at the company’s Cabin Creek power plant near Georgetown. Prosecutors say Xcel failed to provide necessary safety equipment for the workers — who were trapped inside the pipe by a fire and died of smoke-inhalation — and didn’t have appropriate safety or rescue plans in place. Xcel’s attorneys have argued that the workers’ direct employer, RPI Coating Inc., was responsible for their safety.

Both of the jurors’ questions today related to the difference between an “employer” and a “host employer” in workplace safety regulations. Of the 10 regulations Xcel is accused of violating, only one applies to companies considered “host employers.” The remaining regulations apply to “employers.”

If jurors decide that Xcel, which managed the work at the power plant, should be legally considered a “host employer” but not an “employer,” then the only regulation jurors could find Xcel guilty of is one requiring notification of subcontractors of safety concerns and of the rules that need to be followed to address those concerns.

Xcel’s lawyers wrapped up their case on Monday, and both sides are expected to meet today for a hearing to debate proposed jury instructions, according to the folks working in Chief U.S. District Judge Wiley Daniel’s courtroom. After a previously scheduled day off on Wednesday, attorneys for the prosecution and defense are expected to deliver closing arguments on Thursday. Then it will be up for jurors to decide.

Xcel Energy Inc. and its subsidiary, Public Service Company of Colorado, are charged with violating workplace safety laws in the 2007 deaths of five men at the Cabin Creek hydroelectric plant near Georgetown. The men were working to re-seal the inside of a large water pipe, known as a penstock, when a fire broke out. Because the fire blocked the exit below them and because there was no rescue apparatus in place to pull them out from above, the men succumbed to smoke-inhalation.

Federal prosecutors during the trial have portrayed Xcel as negligent in ensuring the men’s safety, while Xcel’s attorneys have argued the company fulfilled its obligations under the law. If convicted, the two companies could be fined a combined $5 million and have other sanctions placed on them.

A view of the Cabin Creek hydroelectric plant near Georgetown, where five workers died during a 2007 fire.

Two weeks after it started, the government wrapped up its case this morning in the criminal trial of Xcel Energy on charges of workplace-safety violations.

The federal prosecution’s final witness was a forensic pathologist who performed autopsies on the five workers killed in a 2007 fire at the Cabin Creek hydroelectric plant near Georgetown. As the doctor — Ben Galloway — detailed his findings that the men died from smoke-inhalation and carbon-monoxide poisoning, pictures of the men’s bodies appeared on screens in the courtroom.

After Chief U.S. District Court Judge Wiley Daniel denied the standard defense motion to dismiss the case, Xcel’s attorneys then called their first witness, an Occupational Safety and Health Administration investigator.

It seems that the alleged dealer — a Commerce City man named Aaron Castro — had a rather unusual spending habit. According to federal prosecutors’ complaint, Castro dropped thousands of dollars in meth proceeds on … comic books. How many comic books?

18,753.

The complaint (PDF) was filed in April, and the feds are seeking to seize permanently each and every last Batman, Superman and Green Lantern because “defendant Comics constitutes [sic] proceeds traceable to exchanges of controlled substances.” The complaint also alleges that Castro hid some of his meth in his piles of comic books. If it’s successful in keeping the comics, the government would presumably put them up for auction, to the delight of fanboys everywhere.